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  • REPUBLIC OF SOUTH AFRICA

    Reportable

    IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG

    JUDGMENT

    Case no: JA52/2013

    In the matter between:

    RUAN KUKARD Appellant

    and

    GKD DELKOR (PTY) LTD Respondent

    Heard: 12 September 2014

    Delivered: 07 October 2014

    Summary: Proof of dismissal- parties entering into a settlement agreement to

    re-employ employee on same terms and conditions prior to employees

    resignation- employer re-employing employee on different terms- employee

    refusing new terms of employment. Employee referring unfair dismissal-

    employer contending the existence of an employment relationship and that no

    dismissal took place. Commissioner finding dismissal procedurally unfair.

    Labour Court finding that no dismissal took place and CCMA not having

    jurisdiction. Arbitration award set aside- Appeal- evidence showing existence

    of employment relationship and that employer re-employing employee on

    different terms contrary to the settlement agreement. Commissioners decision

    reasonable Compensation Kemp judgment distinguished- reviewing an order

    for compensation- evaluation of the facts before the commissioner based on

    fairness to both parties- evidence showing that reinstatement impractical-

    commissioners compensation order correct- Labour Courts judgment set

  • 2

    aside- review application dismissed with costs Coram: Musi JA, Murphy and

    Kathree-Setiloane AJJA

    JUDGMENT

    KATHREE-SETILOANE AJA

    [1] This is an appeal, with leave of this Court, against the judgment of the Labour

    Court (Vatalides AJ) in which it reviewed and set aside an arbitration award of

    the Commission for Conciliation, Mediation and Arbitration (the CCMA) and

    substituted it with an award that the appellant had failed to prove a dismissal,

    and consequently the CCMA lacked jurisdiction to determine the appellants

    unfair dismissal dispute. The Labour Court ordered the appellant to pay the

    costs.

    [2] The factual matrix from which this appeal arises is largely common cause

    between the parties. The appellant, Ruan Kukard (the appellant), was

    employed by the respondent GKD Delkor (Pty) Ltd (Delkor) during May 2005

    as Technical Sales Representative (Specialised Solid Weave Products). His

    contract of employment included a restraint of trade inter alia preventing him

    from entering into any form of consultation, contract or discussions with direct

    competitors of Delkor, including those companies specifically listed in the

    annexures to the contract, for a period of 12 months from the date of

    resignation.

    [3] On 29 September 2008, the appellant resigned from Delkor in order to take up

    a position with Larox (Pty) Ltd (Larox). Gary Whitford (Whitford), Delkors

    General Manager, regarded Larox to be a competitor, and advised the

    appellant that Delkor would enforce the terms of the restraint of trade

    agreement should he take up the position with Larox. The appellant disputed

    that Larox was a competitor of Delkor, and a flurry of correspondence was

    exchanged between his attorneys (Van Gaalen Attorneys) and Delkors

    attorneys (McClaren and Associates) in relation to this issue.

    [4] On 23 October 2008, Delkors attorneys wrote a letter to the appellants

    attorneys confirming that Delkor would take back the appellant, and that

  • 3

    Whitford and the appellant were meeting the next day to formalise the

    arrangement. On the same day, Delkors attorneys wrote a further letter to the

    appellants attorneys stating inter alia that:

    this matter is capable of resolution on the following basis:

    1. Larox SA (Pty) Limited or its associates will not employ Ruan Kukard.

    2. GKD Delkor will re-employ Kukard with effect 1 November 2008.

    3. Larox SA (Pty) Limited will not employ any GKD-Delkor employee who

    is subject to a GKD restraint.

    [5] On 24 October 2008, the appellants attorneys wrote a letter to Delkors

    attorneys stating that:

    GKD Delkor will re-employ Ruan Kukard on the same conditions, with the

    same benefits he was entitled to prior to resigning, with effect 1 November

    2008.

    In a letter dated, 27 October 2008, Delkors attorneys confirmed the

    abovementioned agreement by stating that:

    We refer to your letter dated 24 October 2008.

    The matter is resolved on the basis set out in your letter. We kindly request

    your client to report for duty on 1 November 2008.

    On Friday, 24 October 2008, Whitford met with the appellant at the Dros.

    Other than that the appellant had asked Whitford to provide him with a

    detailed job description, which Whitford undertook to do, the details of this

    discussion are in dispute.

    [6] The appellant reported for duty at Delkor on 3 November 2008, as 1

    November fell on a Saturday. Upon reporting for duty, the appellant was

    instructed to wait in the reception area whilst certain documents were being

    prepared for him. The document that was handed to the appellant on that day

    was a letter of appointment indicating that he would be appointed in the

    position of Proposal Engineer from 30 November 2008 until 30 January 2009,

  • 4

    whereas prior to his resignation he was employed on a permanent basis as a

    Technical Sales Representative. The appellant requested use of the laptop

    and cell phone which he used prior to his resignation, but these items were

    not handed to him. The appellant once again asked to be provided with a

    formal job description, but it was not provided to him.

    [7] On 4 November 2008, a discussion took place between the appellant and

    Whitford, Although the details of this discussion remain in dispute between the

    parties, it is common cause that Whitford raised the issue of the appellants

    refusal to sign the fixed term contract for the position of Proposal Engineer

    with the respondent, and instructed him to hand back the company cell phone

    which was given to him the day before. Whitford also handed the appellant a

    letter, of the same date, stating that:

    This letter confirms that the offer of employment issued Monday 3 November

    is withdrawn in its entirety.

    The appellant, thereafter, left Delkors premises. Later that day his attorneys

    wrote a letter, to Delkors attorneys inter alia stating as follows:

    We confirm that our client Ruan Kukard did report for duty on 3 November

    2008, 1 November 2008 was a Saturday. He was handed a Letter of

    Appointment, valid only for three months, and confirming his appointment as

    Proposal Engineer. We confirm he was not employed on the same conditions

    and benefit as agreed.

    Our client, Ruan Kukard approached your Gary Whitford from your clients

    offices this morning about the issue that he is not employed on the same

    conditions and benefits as agreed. Gary informed him that there is no

    agreement and that he must go home. A letter was even handed to him that

    confirms that the Letter of Appointment issued on 3 November 2008 is

    withdrawn in its entirety.

    We confirm that your client is in breach of the settlement agreement and

    further unfairly dismissed Ruan Kukard this morning. Our client accepts your

    clients repudiation of the settlement agreement and confirms therefore that

    the settlement agreement is null and void. We are in the process of referring

    the matter to the CCMA.

  • 5

    [8] Later that day, Delkors attorneys replied stating that:

    1. Notwithstanding the settlement your client has been hell-bent on derailing

    the process of his re-integration into the company.

    2. As such he has been obtuse and obstructive and difficult to deal with.

    3. There is no question of repudiation or dismissal.

    4. The correspondence and proposed letters of appointment were put forward

    for discussion purposes only.

    5. You will note from the last paragraph of the proposed agreement that if

    your client had any queries, he was invited to take up same with the writer.

    6.

    7.

    8. There is accordingly no question that your client was dismissed and both

    you and your client are invited to meet with the writer to discuss the matter.

    [9] On 4 November 2008, the appellant referred an unfair dismissal dispute to the

    CCMA. The dispute was arbitrated by the Commissioner on 17 February

    2009, and on 23 February 2009 she issued the arbitration award (the award)

    in which she found that the appellant was dismissed by Delkor on 4

    November 2008, and that his dismissal was substantively and procedurally

    unfair. The Commissioner found that the so called extension of the settlement,

    dated 11 February 2009, the repeated statements that the appellant had in

    fact not been dismissed, and the offers to re-employ him, including the one

    made at the arbitration were of no consequence to the consideration of

    proper compensation due to the appellant. The Commissioner held, in this

    regard, that the relationship between the appellant and Delkor cannot be

    salvaged based on: (a) the length of service of the appellant; (b) the way in

    which the appellant was treated; and (c) the fact that the appellant had been

    unable to secure employment. The Commissioner accordingly ordered Delkor

    to pay the appellant the amount of R420 000, 00, in c

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